Mireles v. Dart

2023 IL App (1st) 221090

FOURTH DIVISION
Order filed: March 30, 2023

No. 1-22-1090
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

JOEL MIRELES, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) No. 2016 CH 11288
)
THOMAS J. DART and the COOK COUNTY )
SHERIFF’S MERIT BOARD, ) Honorable
) Neil Cohen,
Defendants-Appellees. ) Judge, Presiding.
___________________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Presiding Justice Lampkin and Justice Rochford concurred in the judgment and opinion.

OPINION

¶1 The plaintiff, Joel Mireles, appeals from orders of the circuit court affirming a decision of

the Cook County Sheriff’s Merit Board (Board) separating him from his employment as a

Correctional Officer with the Office of the Cook County Sheriff and dismissing his claim for a

declaratory judgment which sought findings that the Board was illegally constituted and that its

decision terminating his employment as a Correctional Officer is void. For the reasons which

follow, we affirm the orders of the circuit court.
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¶2 The procedural posture of this case is not in dispute. The plaintiff was appointed as a

Correctional Officer with the office of the Cook County Sheriff on July 23, 2007, and thereafter

assigned to the Receiving Classification Diagnostic Center (RCDC) of the Cook County

Department of Corrections (CCDOC). On March 17, 2015, Thomas J. Dart, the Sheriff of Cook

County (the Sheriff), filed a complaint with the Board, alleging that the plaintiff: used excessive

force against an inmate, Jabari Funches, by striking him in the head and pushing him into a wall

and doorway; failed to document his use of force against Funches in three official reports he

completed relating to the incident; falsely documented that Funches had raised his hands before

he struck him; falsely stated in a January 31, 2014, interview that he did not see other officers kick

Funches; and made other false statements regarding the incident. Based upon those allegations, the

complaint charged the plaintiff with violations of the Rules and Regulations and General Orders

of the CCDOC and sought his separation from employment as a Correctional Officer. A hearing

on the complaint was conducted on February 4 and 5, 2016. On July 29, 2016, the Board issued

its final written decision, upholding the charges and terminating the plaintiff’s employment.

¶3 On August 26, 2016, the plaintiff filed a complaint in the circuit court for administrative

review of the Board’s decision, asserting, inter alia, that the Board’s decision was against the

manifest weight of the evidence and that his termination was arbitrary and capricious. The plaintiff

requested an order setting aside the Board’s decision, reinstating him to his position, and awarding

him compensation for his losses, including back pay. On May 31, 2017, the circuit court affirmed

the Board’s decision, finding that the Board’s factual findings were supported by the evidence and

that the plaintiff’s termination was neither arbitrary, unreasonable, nor capricious.

¶4 On June 27, 2017, the plaintiff filed a notice of appeal from the circuit court’s order of May

31, 2017, which was docketed in this court as No. 1-17-1672. While that appeal was pending, the

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plaintiff filed a motion in the circuit court on June 30, 2017, requesting reconsideration of the May

31, 2017, order affirming the Board’s decision and raising for the first time an argument that the

Board’s decision was void because the Board was illegally constituted at the time of its decision

terminating his employment. On the plaintiff’s motion, this court entered an order on August 7,

2017, in appeal No. 1-17-1672, dismissing that appeal.

¶5 Thereafter, the circuit court stayed proceedings in the instant case pending the supreme

court’s resolution of an appeal in Goral v. Dart, 2020 IL 125086. Following the supreme court’s

decision in Goral, the circuit court entered an order on January 12, 2022, over the objection of the

Sheriff, granting the plaintiff’s oral motion for leave to file an amended complaint.

¶6 On January 14, 2022, the plaintiff filed a two-count complaint entitled Second Amended

Class Action Complaint. Count I consisted of a repleading of the plaintiff’s complaint for

administrative review of the Board’s decision which clearly stated that it was being pled solely for

the purpose of preserving for appeal the propriety of the circuit court’s order of May 31, 2017.

Count II sought a declaratory judgment finding that seven members of the Board participating in

the decision terminating his employment were “invalidly appointed” and declaring that the Board’s

decision terminating his employment is void. On June 23, 2022, the circuit court entered an order

dismissing the plaintiff’s Second Amended Complaint, and this appeal followed.

¶7 For his first issue in this appeal, the plaintiff contends that the circuit court erred in

dismissing his claim for a declaratory judgment that the Board’s decision terminating his

employment is void due to the invalid appointment of seven of the eight members of the Board

participating in the decision. The plaintiff argues that, contrary to the circuit court’s determination,

the de facto officer doctrine does not apply to validate the Board’s decision. According to the

plaintiff, once the defendants were put on notice by the circuit court’s August 19, 2014, order in

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Taylor v. Dart, 13 CH 26319, which found that the Board was illegally constituted, none of the

Board’s decisions issued thereafter and until the Board was legally constituted can be validated by

application of the de facto officer doctrine. He concludes that, since the Board’s decision in this

case was issued after the circuit court’s finding in Taylor v. Dart but before the Board was legally

constituted, the de facto officer doctrine is inapplicable.

¶8 In support of the circuit court’s dismissal of the plaintiff’s claim for declaratory judgment,

the Sheriff argues that, since the plaintiff failed to raise an argument that the Board was illegally

constituted before the Board itself and did not raise the claim until long after the Board had issued

its final decision in this case, the de facto officer doctrine bars any challenge to his dismissal based

upon the Board’s composition. According to the Sheriff, the plaintiff’s arguments on this issue

have been rejected by this court in Malacina v. Cook County Sheriff’s Merit Board, 2021 IL App

(1st) 191893. We agree. See also Cruz v. Dart, 2019 IL App (1st) 170915, ¶ ¶ 28–41.

¶9 The de facto officer doctrine is an equitable doctrine that confers validity upon acts

performed by a person acting under the color of official title even though it is later discovered that

the legality of that person’s appointment to office is deficient. Goral, 2020 IL 125086, ¶ 71.

“Under the doctrine, the acts of a person actually performing the duties of an office under color of

title are valid so far as the public or third parties who have an interest in them are concerned.” Id.

The doctrine acts as defense to an attack on the acts of an officer or appointee in a collateral

proceeding. Id. ¶ 72. The doctrine does not preclude a timely challenge to an agency’s authority

or a direct attack in the same proceeding in which a board member is appointed. Id. ¶ 73. Rather,

it is a defense to a collateral challenge brought after the official action has been completed.

Malacina, 2021 IL App (1st) 191893, ¶ 21.

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¶ 10 In this case, the plaintiff raised the illegal composition of the Board for the first time in his

motion for reconsideration of the circuit court’s May 31, 2017, order affirming the Board’s

decision, which motion was filed 11 months after the Board rendered its final decision. The

plaintiff’s reliance upon the circuit court’s August 19, 2014, order in Taylor v. Dart which found

that the Board was illegally constituted to support his conclusion that the de facto officer doctrine

is inapplicable is misplaced. The Board’s illegal composition as found in Taylor “remained ripe

for a challenge by a party before the Board – as long as the party raised it at the time of those

administrative proceedings, and not merely afterward, post-final decision.” Malacina, 2021 IL

App (1st) 191893, ¶ 31 (emphasis in original).

¶ 11 As was the case in Malacina, the plaintiff’s declaratory judgment claim is barred by the de

facto officer doctrine because his challenge to the Board’s composition was made after the Board

rendered its final decision. Id. ¶ 32; see also Cruz, 2019 IL App (1st) 170915, ¶¶ 28–41.

¶ 12 The plaintiff next seeks reversal of the circuit court’s May 31, 2017, order affirming the

Board’s final decision terminating his employment as a Correctional Officer. He argues that the

Board’s decision is against the manifest weight of the evidence and that termination of his

employment was arbitrary, capricious, and unreasonably harsh. A resolution of the arguments

requires consideration of the Sheriff’s complaint, the evidence presented during the hearing on that

complaint, and the Board’s findings of fact based on that evidence.

¶ 13 As noted earlier, the Sheriff filed a complaint with the Board, charging the plaintiff with

violations of the Rules and Regulations and the General Orders of the CCDOC. The complaint

alleged that: on May 4, 2012, the plaintiff used excessive force against an inmate, Jabari Funches,

by striking him in the head and pushing him into a wall and doorway; that he failed to document

his use of force against Funches in three official reports he completed relating to the incident; that

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he falsely documented that Funches had raised his hands before he struck him; that he falsely stated

in a January 31, 2014, interview that he did not see other officers kick Funches; and that he made

other false statements regarding the incident. The following evidence was presented during the

February 4, 2016, Board hearing.

¶ 14 The parties stipulated to a variety of exhibits that were admitted in evidence, including:

general orders of the CCDOC; a letter from Richard Ellitch, an investigator in the Cook County

Sheriff’s Office of Professional Review (OPR) to the plaintiff; the Response to Resistance/Use of

Force report completed by the plaintiff; an Incident Report completed by the plaintiff; an Inmate

Disciplinary Report completed by the plaintiff; the plaintiff’s statement to the OPR; a video

containing eight segments of the May 4, 2012, incident involving Funches; documents relating to

Correctional Officer Dale Frank’s Response to Resistance/Use of Force report; Officer Frank’s

statement to the OPR; the witness statement of Sergeant Wilfredo Cintron (Sgt. Cintron); Sgt.

Cintron’s statement to the OPR; OPR’s summary of the plaintiff’s interview dated January 31,

2014; Response to Resistance/Use of Force report completed by Correctional Officer Gustavo

Jimenez; and a Data Collection Report from Lieutenant Adam Thielen.

¶ 15 Investigator Ellitch was the first witness called to testify. He stated that he had been

assigned to OPR since 2014, and prior to that assignment, he had been a Correctional Officer.

Ellitch testified that he had been trained in the use of force and had investigated hundreds of use-

of-force cases during his tenure at OPR. He stated that he was assigned to investigate the May 4,

2012, incident involving Funches and identified several documents that made up Funches’

complaint relating to that incident. Ellitch admitted that the complaint submitted by Funches was

against Officer Frank and did not mention the plaintiff.

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¶ 16 Ellitch was shown the video of the May 4, 2012, incident and identified Funches, the

plaintiff, and other CCDOC employees seen in the video. Ellitch testified that the video shows

Funches with his arms at his side and the plaintiff striking him in the head or face. According to

Ellitch, Funches did not raise his hands toward the plaintiff. He testified that the plaintiff stated in

his Response to Resistance/Use of Force report that Funches had taken a combative stance and

raised his hands toward him, neither of which actions he observed in the video. Ellitch opined that

the plaintiff and other CCDOC employees had used excessive force against Funches.

¶ 17 Ellitch testified that he interviewed the plaintiff on March 24, 2014, at which time the

plaintiff told him that Funches had disobeyed his directive to keep his hands down, yelled and

uttered an obscenity at him, and that Funches turned and faced him. The plaintiff told him that he

felt threatened by Funches. Ellitch again stated that he did not see Funches raise his hands in the

video and opined that it would have been unreasonable for the plaintiff to be in fear of a battery.

He opined that, even if Funches was not responding to the plaintiff’s commands, “that would make

him at worse a non-moving resistor.” Based on the video, Ellitch stated that, even when he was

struck by the plaintiff, Funches never became more than a non-moving resistor. According to

Ellitch, the plaintiff should have used a control hold. Ellitch testified that the video shows that

there were at least four other correctional officers around Funches when the plaintiff struck him.

He concluded that the plaintiff’s actions in striking Funches were unreasonable and no blow to the

head was warranted. Ellitch was also of the opinion that the plaintiff’s actions escalated the

situation, noting that once the plaintiff struck Funches a fight broke out between Funches and

several other correctional officers.

¶ 18 Ellitch related that the video also depicts the plaintiff pushing Funches into a wall and a

doorway as he was being escorted to his cell in handcuffs, facts which were not reported in either

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the Incident Report or Inmate Disciplinary Report completed by the plaintiff. Ellitch testified that,

when he questioned the plaintiff about pushing Funches, the plaintiff stated he neither pushed nor

shoved Funches into a wall or a doorway. The plaintiff told him that Funches was struggling and

pulling away as he was being escorted through the doorway. It was Ellitch’s testimony that the

plaintiff’s statement was not consistent with what was depicted on the video.

¶ 19 On cross-examination, Ellitch was questioned about his knowledge of the use of force and

the training he received on the subject. He acknowledged that, in his complaint, Funches identified

Officer Frank as the primary officer who had used excessive force against him.

¶ 20 Ellitch testified that he interviewed Correctional Officer Jaime Mireles concerning his

Response to Resistance/Use of Force report wherein he indicated that Funches was a non-moving

resistor, a moving resistor, and a low-level assailant. According to Ellitch, Officer Mireles also

stated in his report that Funches was yelling and arguing with the plaintiff and refusing to comply

with his orders.

¶ 21 Ellitch was shown a Response to Resistance/Use of Force report completed by

Correctional Officer Frank which states that Funches was a moving resistor, a non-moving resistor,

and all three levels of an assailant. Ellitch testified that he interviewed Frank on February 6, 2020,

at which time Frank stated that he did not remember the incident but stood by his report.

¶ 22 Ellitch was also shown a report completed by Sgt. Cintron in which he stated that he saw

Funches take a combative stance toward the plaintiff and raise his hands. According to the report,

the plaintiff struck Funches with an open hand. Ellitch testified that he interviewed Cintron in

March 2014 at which time Cintron stated that he was familiar with the incident but that his memory

was vague.

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¶ 23 According to Ellitch, he was unable to interview several other individuals involved in the

incident with Funches because they were no longer with the CCDOC. He was shown a Response

to Resistance/Use of Force report that had been completed by then Correctional Officer Gustavo

Jimenez which identified Funches as a non-moving resistor, a moving resistor, and a low-level

assailant. The report states that Jimenez witnessed Funches yell an obscenity at the plaintiff and

tell the plaintiff “I don’t have to listen to you.” The report also states that Jimenez witnessed

Funches decline to comply with a verbal order from the plaintiff, take a combative stance, and fail

to place his hands behind his back to be handcuffed.

¶ 24 Ellitch was shown the report that was submitted by Lieutenant Thielen which states that

Funches took a fighting stance and that the plaintiff struck him with an open hand. In that report,

Thielen checked a box stating: “All officers acted in accordance with Department policy.”

Thielen’s report shows that it was reviewed by Superintendent Michael Holmes and Director Gary

Hickerson, both of whom agreed with the preliminary findings.

¶ 25 Ellitch testified that he interviewed Funches over the phone while he was a detainee at the

CCDOC. He admitted that Funches never mentioned the plaintiff by name and never alleged that

he had been pushed into a wall or a doorway.

¶ 26 On redirect examination, Ellitch stated that he did not agree with the statements that some

of the officers made in their reports that were not supported by the video of the incident. After

being shown the definition of a low-level assailant, which states “This type of assailant is one who

places an officer in fear of a battery and includes advancing on the officer in a threatening manner

or closing the distance between the assailant and the officer,” Ellitch was asked who closed the

distance between Funches and the plaintiff. He responded that the plaintiff “was the one who

approached detainee Funches.”

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¶ 27 The next witness called was James Hart who testified via Skype. Hart testified that he is

employed by the University of Tennessee, County Technical Assistance Service, and as a jail

management consultant. He stated that he has been involved in corrections for over 35 years and

was engaged in this case as an expert witness by the Sheriff. Over an objection by the plaintiff,

Hart was permitted to testify as an expert, and his CV was admitted in evidence.

¶ 28 Hart testified that prior to the hearing he had been provided with, and reviewed, the

Sheriff’s orders, statements, reports of the Funches incident, supervisory reviews, and the videos

of the incident. Based upon his review of the exhibits, he concluded that the plaintiff used excessive

force on May 4, 2012, when he struck Funches. According to Hart, Funches did not pose any

potential risk when he was struck. He stated that the plaintiff closed the distance between himself

and Funches and positioned himself face to face with Funches, escalating the situation. Hart

testified that Funches had been turned around by one of the other officers to face the plaintiff, and

it was at that point that the plaintiff struck Funches on the side of his face with his right hand while

Funches’ hands were down at his side. It was Hart’s opinion that Funches was a high-level

cooperative subject at the time that he was struck by the plaintiff. Funches was not a moving

resister because he was complying with the movements of the correctional officers, standing, and

not moving away from the officers. Hart also opined that Funches did not fall into any of the

assailant categories because he was standing where he had been placed and did not initiate any

aggressive actions toward the officers.

¶ 29 On cross-examination, Hart admitted that he had never worked for the CCDOC except

about 15 years earlier when, as part of a team, he conducted an audit of the CCDOC. He stated

that he had been involved in one use-of-force situation as an officer and two as a supervisor when

he was employed with the Hamilton County Sheriff in Tennessee. According to Hart, the use of

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force by an officer is reviewed based upon a totality of the circumstances, judged from the

perspective of the officer, and taking into account the level of the threat, the number of officers at

the scene, the size of the inmate, and the location of the incident. He was of the belief that the

location of this incident was “low-risk unlocked” where the inmates were free to move around on

their own. Hart stated that he would be surprised to know that the inmate mix in the area consisted

of both inmates being held for minor offenses and those being held for egregious violent offenses.

¶ 30 Hart testified that Funches was “high-level cooperative,” following the correctional

officers’ directions when they had their hands on him, and he was not resistant. He was unaware

of what verbal commands had been given to Funches or whether he had been ordered to turn

around to be “cuffed up.” Hart also admitted that he had no knowledge of whether Funches had a

confrontation with another inmate prior to the incident. He maintained that the plaintiff should

have taken steps to deescalate the situation.

¶ 31 On redirect examination, Hart stated that he had no information that Funches had “balled

his fists” at the plaintiff.

¶ 32 On recross-examination, Hart testified that manipulation of Funches’ limbs would have

been a possible alternative to the use of force.

¶ 33 Sgt. Cintron was the next witness to testify when the hearing continued on February 5,

2016. He related that he had been with the CCDOC for 20 years, 16 to 17 years of which were as

either the “CO” or a sergeant at the RCDC. He had been terminated by the Board for false

statements and omitting information from his reports of the May 4, 2012, incident.

¶ 34 Testifying as an adverse witness, Cintron stated that he was on duty on May 4, 2012, but

had no independent recollection of the incident that occurred on that date. After being shown the

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Data Collection Report that he had signed and the statement he had given to the OPR concerning

the Funches incident, he testified as follows.

¶ 35 According to Cintron, he had been sitting at his desk in an area called the “pit” prior to the

incident and would not have been able to see “Bullpen A” while he was seated. If he stood up, he

could see individuals from shoulder high. Cintron was shown the video of the incident with

Funches, and he identified himself as the individual wearing a white shirt. He was unable to tell

whether, when he walked into sight of the cameras, he was seated or standing beforehand. Cintron

explained that, if he was standing, his line of sight was about shoulder high. He acknowledged that

he wrote in his report that Funches was in a combative stance with the plaintiff. However when

asked to explain what it was about Funches that was combative, he stated that Funches was yelling

and had turned toward the plaintiff. He was also asked about the statement in his report that

Funches raised his hands at the plaintiff. Cintron admitted that Funches did not raise his hands

above his shoulder. He was able to recall that he came running after the plaintiff struck Funches.

¶ 36 Cintron testified that he was with the other officers when they moved the handcuffed

Funches to another area. According to Cintron, he did not see the plaintiff push Funches into a

wall.

¶ 37 Cintron was unable to recall whether, after the incident, all of the officers involved prepared

their reports together in the same room. Nor could he remember if he was in the same room with

the officers when their reports were prepared. He did recall gathering the officers together after

the incident to prepare their paperwork.

¶ 38 On cross-examination, Cintron testified that his report would have been prepared at the

time of the incident, and he would have remembered at that time whether he was standing or sitting

before the incident. He admitted that he wrote in his report that Funches took a combative stance.

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¶ 39 On redirect examination, Cintron stated that, from his view of the video, he did not see the

plaintiff push Funches into a wall. He admitted, however, that pushing a detainee into a wall would

be a use of force.

¶ 40 On re-cross examination, Cintron testified that stabilizing a detainee would not be

considered a use of force.

¶ 41 In his case-in-chief, the plaintiff called James Klauba, a Chicago police officer, as an expert

witness. Klauba testified that he had been a member of the Chicago Police Department (CPD) for

16 years and, for the last 10 years, was assigned to the Education and Training Division as a use-

of-force and control instructor. In addition, he was the owner of the Blueline Training Corp, a

company that teaches law enforcement certification and also works as an instructor on the use of

force, handcuffing, and baton control for Armament Systems and Procedures. Klauba stated that

he had worked as a Correctional Officer for the CCDOC from 1994 to 1999. His CV, resume, and

a use-of-force model entitled “Blueline Training Force Grid” which he authored were all admitted

in evidence.

¶ 42 Klauba testified that he had reviewed the reports relating to the plaintiff’s use of force on

Funches and the videos of the incident. He opined that the plaintiff’s use of force was reasonable.

He stated that Funches’ actions were “aggressively offensive.” Relying on the plaintiff’s Response

to Resistance/Use of Force report which states that when issued a command Funches said “fuck

you, I don’t have to listen to you,” the reports’ description of Funches’ body cues and stance, and

the passage stating the Funches’ hands started to come up, Klauba classified Funches as

aggressively offensive without weapons. Klauba admitted that he was unable to determine from

the video whether Funches’ hands came up. However, he noted that the other officers’ reports of

the incident supported the plaintiff’s statement that Funches’ hands started to come up. It was

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Klauba’s opinion that the plaintiff could have used even a higher method of control rather than an

open-hand strike.

¶ 43 On the question of whether the plaintiff pushed Funches into a wall or a doorway, Klauba

testified that his review of the video showed three men going through a doorway at the same time,

and although some contact was made, it did not appear that Funches was intentionally pushed by

any of the officers.

¶ 44 On cross-examination, Klauba stated that he had testified as an expert witness on three

previous occasions, each time on behalf of officers, never on behalf of a correctional institution.

He admitted that he never interviewed the plaintiff and that his opinions were based solely on the

documentation he had been provided.

¶ 45 The plaintiff was the next and final individual to testify. He stated that he had been

employed with the CCDOC for 7 1/2 years and had never been the subject of any prior disciplinary

proceeding that he could recall. He testified that he was aware of the orders on response to

resistance and the use of force and related the training he had received on that subject. The plaintiff

identified the Response to Resistance/Use of Force report that he completed relating to the incident

involving Funches and testified to its contents.

¶ 46 The plaintiff testified that he administered an open-handed strike after Funches made a

slightly evasive movement of his arm. According to the plaintiff, he was trying to get Funches to

cooperate and turn in the opposite direction so that he could be handcuffed and isolated from the

other detainees in the bullpen. According to the plaintiff, Funches did not comply with his

commands and moved his hands up. The plaintiff stated that he administered the open-handed

strike because he was in fear for his own safety. The plaintiff also denied pushing Funches into a

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wall or doorway. He stated that Funches was not cooperating as he and the other officers were

escorting him from the scene.

¶ 47 On cross-examination, the plaintiff testified that he engaged with Funches when he was

called to a disagreement between Funches and another detainee in a bathroom. He stated that,

when he ordered Funches and the other detainees to go to Bullpen 5, Funches said, “fuck you, I

don’t want to walk to Bullpen 5.” At that time, he was about a foot from Funches. The plaintiff

testified that he closed the distance between himself and Funches in an effort to defuse the

situation. He admitted that he was waiving his finger in Funches’ face, an action that was not part

of his training. The plaintiff stated that Funches turned toward him when one of the other officers

put his hand on him. According to the plaintiff, Funches “turns not the way that you – he was

supposed to turn. He was supposed to turn around to be handcuffed. He turns forward.” The

plaintiff testified that Funches took a combative stance and his hands started to come up. When

shown the video, the plaintiff said, “if you look right here, you see his elbow coming up, you see

the arm.” He was then asked, “He’s pulling his pants up right here, correct?” The plaintiff

responded, “I don’t know.” He was then asked, “Is it your testimony that when a detainee pulls up

his shorts that was the movement that caused you to strike him in the face, are you?” The plaintiff

answered, “No.” In his Response to Resistance/Use of Force report and in his statement to the

OPR, the plaintiff wrote that Funches raised his hand toward him. He testified that “I seen hands

coming up, or raising up.”

¶ 48 The plaintiff testified that, after Funches was handcuffed, he and another officer escorted

him from the area and through a doorway. He denied walking Funches into a wall.

¶ 49 On re-direct examination, the plaintiff testified that, in preparing his reports of the incident,

he did not use the video. He stated that the reports were prepared based upon his best recollection

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of the events. He again confirmed his earlier testimony that Funches took a combative stance and

that his hands came up, and that he was in fear of his safety when he struck Funches.

¶ 50 The video of the incident which was admitted in evidence before the Board was not part of

the original record filed by the plaintiff. However, we granted the Sheriff’s motion to supplement

the record with the video and have considered it in our analysis. The video of the incident does not

include audio. In the video, Funches can be seen exiting what has been identified as an inmate

restroom. He is carrying what appears to be a towel or article of clothing draped over his right

forearm and a white object, possibly a piece of rolled up paper, in his left hand. As he approaches

two correctional officers, one of the officers places a hand on Funches’ right arm, turning him

around. A third officer approaches Funches from the front and appears to point a finger at Funches’

face. At that point, Funches is still holding the white object in his left hand and his left arm is at

his side. A correctional officer can be seen standing to Funches’ right. Immediately after pointing

his finger at Funches face, the officer is seen striking Funches in the head. As he is hit, the

correctional officer standing to Funches’ left knocks the white object out of his left hand. Prior to

being hit, Funches’ left arm never left his side. The video shows that, upon being struck, Funches’

body immediately turns to the right and leans back; his right arm is at his side. After Funches is

struck, the video shows a number of correctional officers rushing to the scene and wrestling him

to the floor. While he is on the floor, the video shows Funches being punched and kicked by a

number of correctional officers. After Funches is handcuffed and raised to his feet, one of the

officers can be seen putting his hand on Funches’ head and pushing his face into the cycline fencing

that formed the front of cell B. The plaintiff’s own testimony identified him as the officer that

pointed his finger at Funches face and struck Funches in the head.

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¶ 51 In its written decision, the Board found “by a preponderance of the evidence through the

testimony of the witnesses; the video tape recording of the May 4, 2012, incident ***; and the

supporting evidence that the *** [plaintiff] and others used excessive force, were less than credible

in their testimony and inaccurate in their written reporting of the event ***.” According to the

Board’s decision, “[t]he video *** shows that the inmate Funches was hit in the head by the ***

[plaintiff] at least one time, taken to the ground and then punched and kicked by other officers.”

The Board found that because Funches was “at most a non-moving resistor and then became a

moving resistor once the initial blow was delivered by the *** [plaintiff], [he] did not fit the

category of becoming an assailant.” The Board found “a lack of evidence that the detainee

[Funches] became an assailant by making an aggressive move against the *** [plaintiff] , balling

his fists, raising his arms or otherwise taking a combative position against the *** [plaintiff].” The

Board found that the testimony of the plaintiff and his expert witness that Funches became an

assailant is “inconsistent with the video.” It was also the Board’s determination that the plaintiff

and others did not fully report the events regarding the use of force applied against Funches.

¶ 52 The Board concluded, “[b]ased on the evidence presented and after assessing the credibility

of the witnesses and the weight to be given the evidence in the record,” that the plaintiff violated

certain specified Sheriff’s Orders, General Orders, and Rules of The Cook County Sheriff’s Merit

Board. The Board ordered the plaintiff separated from employment with the Cook County Sheriff’s

Office.

¶ 53 The charges against the plaintiff were filed with the Board pursuant to section 3-7011 of

the Counties Code (Code) (55 ILCS 5/3-7011 (West 2014)). Section 3-102 of the Administrative

Review Law provides that the statute “shall apply to and govern every action to review judicially

a final decision of any administrative agency where the Act creating or conferring power on such

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agency, by express reference, adopts the provisions of *** the Administrative Review Act.” 735

ILCS 5/3-102 (West 2022). Section 3-7012 of the Code provides that the Administrative Review

Law applies to and governs proceedings for review of the Board. 55 ILCS 5/3-7012 (West 2014).

¶ 54 Under the Administrative Review Law, our review extends to all questions of fact and law

presented by the entire record. 735 ILCS 5/3-110 (West 2022). In appeals from judgments of the

circuit court on administrative review, we review the decision of the administrative agency, not

the determination of the circuit court. Frances House, Inc. v. Department of Public Health, 2015

IL App (1st) 140750, ¶ 22.

¶ 55 The standard of review which we apply to an administrative decision depends on whether

the question presented is a question of fact, a question of law, or a mixed question of fact and law.

AMF Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001);

City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204–05 (1998). Rulings

on questions of fact will be disturbed on review only if against the manifest weight of the evidence.

Comprehensive Community Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d 455,

471–72 (2005). Questions of law are reviewed de novo. Branson v. Department of Revenue, 168

Ill. 2d 247, 254 (1995). Mixed questions of fact and law are reviewed under a clearly erroneous

standard. AMF Messenger Service, Inc., 198 Ill. 2d at 391–95; City of Belvidere, 181 Ill. 2d at 205.

¶ 56 The first step in our analysis is to determine whether the Board’s findings of fact are

contrary to the manifest weight of the evidence. An administrative agency’s findings and

conclusions of fact are considered prima facie true and correct. 735 ILCS 5/3-110 (West 2022).

The Board’s factual determinations are against the manifest weight of the evidence only where an

opposite conclusion is clearly apparent. Beggs v. Board of Education of Murphysboro Community

School District No. 186, 2016 IL 120236, ¶ 50.

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¶ 57 In this case, the plaintiff makes several arguments in support of his contention that the

Board’s decision is against the manifest weight of the evidence. According to the plaintiff, (1) the

Board relied on evidence outside of the record, (2) the Board “improperly relied upon credibility

determinations,” (3) the Board’s factual determinations are unsupported by credible evidence, and

(4) the Board’s finding that he used excessive force is clearly erroneous. We address each assertion

in turn.

¶ 58 The plaintiff argues that “the Board relied on evidence outside of what the Sheriff

submitted to it in concluding that *** [he] failed to report that ‘the detainee [Funches] being

punched and kicked while on the ground as evident from the video.’ ” According to the plaintiff,

“the Sheriff never presented evidence on this point.” We disagree. The video of the incident which

was admitted in evidence by stipulation of the parties showed Funches being punched and kicked,

a fact that is not contained in any of the reports submitted by the plaintiff.

¶ 59 Next, the plaintiff argues that the Board “improperly relied upon credibility

determinations” in arriving at its decision. The argument is based upon the fact that Brian Riordan,

a former member of the Board, acted as the hearing officer but did not participate in the decision.

The plaintiff asserts that it was board member Kim Widup, who was not present at the hearing,

who prepared the Board’s written decision containing credibility findings unfavorable to him and

his defense. According to the plaintiff, the Board’s decision hinges on the hearing officer’s

credibility findings with respect to his perceptions of Funches’ actions, what he documented in his

reports, the statement that he gave to the OPR, and the credibility findings relating to the content

of the reports of the other officers involved in the incident.

¶ 60 The plaintiff is correct in his assertion that a hearing officer’s findings, where demeanor is

important, is an element to be considered in determining whether evidence supports an agency’s

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decision. Serio v. Police Board of the City of Chicago, 275 Ill. App. 3d 259, 267 (1995). However,

in this case, the Board’s determination that the plaintiff and other officers involved in the incident

were “less than credible in their testimony and inaccurate in their reporting of the event” is not

dependent upon witness demeanor; rather, it is based upon a video of the incident that was admitted

in evidence. The plaintiff testified that, prior to striking him, Funches moved his hands up and took

a combative stance. In their reports, the plaintiff, Jimenez, and Cintron stated that Funches had

taken a combative stance and raised his hands. However, the video shows Funches with his arm at

his side, and contrary to the testimony of the plaintiff and the content of his reports and the reports

of other officers, the video of the incident does not show Funches raising his hands or taking a

combative stance before being struck by the plaintiff. The Board’s credibility finding is supported

by the video, not by the credibility assessment of a hearing officer.

¶ 61 Next the plaintiff argues that the Board’s factual findings are not supported by the evidence.

Specifically, he takes issue with the Board’s finding that Funches was “in the control of two

correctional officers who were by his side.” He notes that the officers who were allegedly holding

Funches were not called to testify. However, as the Sheriff correctly argues, the plaintiff’s

testimony that Funches was walking away from the officers as they were trying to handcuff him

is inconsistent with the video which shows that before he was struck there was one correctional

officer standing to Funches’ right and another officer was standing to his left. The video fails to

show Funches attempting to walk away from the officers before he was struck by the plaintiff.

Further, as noted earlier, the video fails to reflect that Funches raised his hand or took a combative

stance toward the plaintiff before he was struck. Rather, it shows that Funches was standing erect

between two correctional officers with his left arm at his side when the plaintiff approached,

pointed his finger at Funches’ face, and immediately struck Funches in the head.

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¶ 62 Finally, the plaintiff argues that the Board’s finding that he used excessive force is clearly

erroneous. According to the plaintiff, the Board deferred to the opinions of the Sheriff’s expert

witness regarding the use of force. However, the plaintiff cited no authority in support of the

argument other than reciting the holding in Graham v. Connor, 490 U.S. 386, 396 (1989), that the

use of force must be judged from the perspective of a reasonable officer at the scene. He notes his

objection to Hart’s qualification as an expert but cites no authority supporting the proposition that

Hart should not have been permitted to testify as an expert witness. The plaintiff concludes that,

“[b]ecause the Board elevates Hart’s testimony and its own hindsight review over the textual

guidelines of the Sheriffs Order, the controlling case law, and the testimonial perspective of

reasonable on scene officers, it [the Board’s finding that he used excessive force] is clearly

erroneous.” Having failed to cite authority supporting the proposition that the Board’s findings on

excessive force were clearly erroneous, the plaintiff has forfeited the argument. Ill. S. Ct. R.

341(h)(7) (eff. Oct. 1, 2020). Waiver aside, we find no merit in the argument.

¶ 63 A finding by an administrative agency is clearly erroneous only if the reviewing court is

left with a definite and firm conviction that a mistake has been committed. AMF Messenger

Service, Inc., 198 Ill. 2d at 393. The testimony of the plaintiff and the reports of the plaintiff and

the other correctional officers involved stating that prior to being struck Funches took a combative

stance and raised his arms toward the plaintiff are contradicted by the video of the incident. As

noted earlier, the video shows that Funches was standing erect with his left arm at his side when

the plaintiff approached, pointed his finger at Funches’ face, and immediately struck Funches in

the head. The video fails to show Funches in a combative stance or raising his arms toward the

plaintiff. The video supports the Board’s finding that the plaintiff was “less than credible” in his

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testimony, that he and the other officers involved were inaccurate in their written reports, and that

the testimony of the plaintiff and his use of force expert are inconsistent with the video.

¶ 64 For the reasons stated, we conclude that the Board’s findings of fact are not against the

manifest weight of the evidence nor are they clearly erroneous.

¶ 65 Finally, the plaintiff argues that his termination is arbitrary, capricious, and unreasonably

harsh. He notes that he had never been disciplined before. He also notes that the Board did not

render a factual finding on the charge that he pushed Funches into a wall. The plaintiff contends

that, “in light of the grievous evidentiary issues in this case, there is no support for a finding of

cause [for his discharge].” Again, we disagree.

¶ 66 A Sheriff’s correctional officer may not be discharged except for cause. 55 ILCS 5/3-7012

(West 2014). Having found that the Board’s findings of fact are not against the manifest weight of

the evidence, we now address the issue of whether those factual findings provide sufficient basis

for concluding that cause for terminating the plaintiff’s employment exists. Walker v. Dart, 2015

IL App (1st) 140087 ¶ 39. Cause is defined as some substantial shortcoming that renders the

employee’s continued employment in some way detrimental to the discipline and efficiency of the

service and something that the law and a sound public would recognize as good cause for

discharge. Ehlers v. Jackson County Sheriff’s Merit Commission, 183 Ill. 2d 83, 89 (1998); Walsh

v. Board of Fire and Police Commissioners of the Village of Orland Park, 96 Ill. 2d 101, 105

(1983).

¶ 67 In determining whether sufficient cause exists to warrant the plaintiff’s discharge, we are

not at liberty to substitute our judgment of what we consider to be a more fitting sanction. Rather,

our review is confined to determining whether the Board’s sanction is so unreasonable or arbitrary

as to be unrelated to the requirements of service. Walsh, 96 Ill. 2d at 105; Merrifield v. Illinois

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State Police Merit Board, 294 Ill. App. 3d 520, 529–30 (1998). We accord substantial deference

to the Board’s decision in the matter. Walsh, 96 Ill. 2d at 105. The Board was in the best position

to determine the effect of the plaintiff’s actions on the CCDOC and the office of the Sheriff.

Marzano v. Cook County Sheriff’s Merit Board, 396 Ill. App. 3d 442, 446 (2009).

¶ 68 The Board found that the plaintiff used excessive force against an inmate, did not fully

report the events of the incident regarding the use of force, and was inaccurate in his written

reports. Based on those findings, the Board concluded that the plaintiff had violated three specific

General Orders of the CCDOC, two specific Sheriff’s Orders, and one of its own rules.

¶ 69 The violation of a single rule may constitute a sufficient basis for discharge. Cruz v. Cook

County Sheriff’s Merit Board, 394 Ill. App. 3d 337, 342 (2009). Sheriff’s Order 11.2.1.0, Section

X, provides that “[t]he use of excessive force is prohibited.” Subsection A of that same section

provides in sub-subsections (4), (6), and (7) that “[t]he following acts are prohibited; use of force

as a response to verbal insults or subject threats where there is no immediate threat to safety of the

institution, subjects, or staff; striking, hitting, or punching a restrained or handcuffed and non-

combative subject; and use of force against a subject after the subject has ceased to offer resistance

and is under control.” The Board specifically found that the plaintiff had violated that Sheriff’s

Order. General Order of the CCDOC 4.1, III, A, 18 provides that “Serious Misconduct” includes

“[m]aking a false official report, either oral or written.” The Board found that the plaintiff also

violated that General Order.

¶ 70 A clear public policy exists prohibiting the use of excessive force against an inmate and

justifies the discharge of a correctional officer engaging in such activities. Department of Central

Management Services v. American Federation of State, County & Municipal Employees

(AFSCME), AFL-CIO, 197 Ill. App. 3d 503, 514 (1990). The fact that the plaintiff had never been

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No. 1-22-1090

disciplined before does not preclude a finding that sufficient cause exists for his discharge given

the nature of the charges involved. Bultas v. Board of Police & Fire Commissioners o the City of

Berwyn, 171 Ill. App. 3d 189, 196–97 (1988).

¶ 71 Having found that the Board’s findings that the plaintiff used excessive force against an

inmate and falsified official reports concerning the incident are not against the manifest weight

of the evidence, we conclude that cause exists for the plaintiff’s discharge and the Board’s

decision to terminate his employment as a correctional officer with the office of the Sheriff of

Cook County was not arbitrary, capricious, or unreasonably harsh.

¶ 72 Based upon the foregoing analysis, we affirm both the circuit court’s order of May 31,

2017, which affirmed the Board’s July 29, 2016, decision terminating the plaintiff’s employment

and the circuit court’s order of June 23, 2022, which dismissed the plaintiff’s Second Amended

Complaint.

¶ 73 Affirmed.

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Mireles v. Dart, 2023 IL App (1st) 221090

Decision Under Review: Appeal from the Circuit Court of Cook County, Chancery Division,
No. 2016-CH-11288; the Hon. Neil Cohen,udge, presiding.

Attorneys for Appellant: Cass T. Casper, Esq.
DISPARTI LAW GROUP, P.A.
121 West Wacker Drive, Suite 2300
Chicago, Illinois 60601
P: (312) 506-5511 ext. 331

Attorneys William Andrichik
for Septoe & Johnson, LLP
Appellee: 161 N. Clark Street, Suite 4700
Chicago, Illinois 60601
P: (312) 577-1273

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